Welcome to
CGO Conference Hall 2/F, Central Government Offices 2 Tim Mei Avenue, Tamar, Hong Kong
25 May 2019 (Saturday) CONTENTS Welcome Messages From the Secretary for Justice 2
From the Director of Public Prosecutions 3
From the Chairman of the Hong Kong Bar Association 4
From the President of the Law Society of Hong Kong 5
Special Guests 6
Conference Programme 8
Reference Papers Reference paper on topic 1 10 Review of sexual offences – Does the Goldilocks principle work?
Reference paper on topic 2 22 Computer crimes: Is the existing law in Hong Kong sufficient to tackle crimes committed in cyberspace or by means of computer technology? Impact of the judgment in SJ v Cheng Ka Yee & Others [2019] HKCFA 9 on section 161 of the Crimes Ordinance, Cap. 200. Any international experience in the investigation and prosecution of cybercrimes that can be shared?
Reference paper on topic 3 32 Money laundering, restraint and confiscation: The law in Hong Kong after Carson Yeung and Salim Majed. In money laundering cases, what are the “proceeds of crime” which are liable to be confiscated? Is civil forfeiture (e.g. unexplained wealth orders under the Criminal Finances Act 2017) a viable model for Hong Kong?
Reference paper on topic 4 42 The future of Hong Kong’s anti-human trafficking laws
Acknowledgements 56
1 Welcome Messages
Welcome Message from The Secretary for Justice
Ms Teresa Cheng, GBS, SC, JP
I welcome you all to the Criminal Law Conference 2019, jointly organised by the Department of Justice, the Hong Kong Bar Association and the Law Society of Hong Kong. I would like to particularly extend a warm welcome to all overseas delegates including those from member states of the Association of Southeast Asian Nations.
As in the previous runs of this conference series, we are privileged to have two very distinguished jurists from other common law jurisdictions joining us as our special guests and sharing with us their invaluable insights and experience.
As globalisation takes form, challenges for prosecutors and law enforcers continue to arise. Many crimes, such as cybercrimes, money laundering and human trafficking, now inevitably transcend borders. Different jurisdictions have come closer than ever to tackle cross-border crimes and also to exchange ideas and experience on issues that are faced domestically, including sexual offences.
This Conference can facilitate intellectual exchanges of professional knowledge and sharing of practical experience. I trust that the discussions will be thought-provoking and greatly benefit Hong Kong and hopefully the home jurisdictions of the overseas participants as well. Hong Kong is always ready for taking an active role in furthering international and regional collaborations, thereby helping to develop the criminal justice systems and enhance the rule of law in the region and beyond.
Our criminal justice system is at the very core of the rule of law of Hong Kong, in which we take great pride. The Department of Justice continues to be committed to upholding the rule of law at the highest professional standard. We are constantly mindful of the huge impacts of prosecutorial decisions on the individuals and families concerned as well as the society as a whole. Ultimately, they serve the public interest and have to be made independently, professionally, and without fear or favour.
This conference series, with the fifth run in this year, is timely for us to reflect on our criminal law regime amid our constant quest for improvement of our criminal justice system. I would like to thank our co-organisers, the Director of Public Prosecutions and our colleagues of the Prosecutions Division for their hard work and dedication in making this year’s Conference another great success.
2 Welcome Message from The Director of Public Prosecutions
David Leung, SC
I welcome you all to the Criminal Law Conference 2019, the 5th in the series, jointly organised by the Prosecutions Division of the Department of Justice, the Hong Kong Bar Association and the Law Society of Hong Kong.
Criminal justice is the cornerstone of a modern and vibrant society. It must be fair, efficient, effective and transparent. It must also evolve with the times. Since 2012, the Criminal Law Conference has been an effective platform facilitating intellectual discussions and sincere sharing amongst veteran practitioners, academics and stakeholders where a wide range of topics of common interest are visited and explored.
I am pleased to see that our continuous effort to nurture this platform has gained encouraging support from all. First, today we are honoured to have two distinguished guests, namely, Lady Justice Hallett, Vice President of the English Court of Appeal Criminal Division and Ms Julie Read, Chief Executive and Director of the New Zealand Serious Fraud Office with us to share their invaluable insights and experience on the topics to be discussed. Second, we are also honoured to welcome delegates from member states of the Association of Southeast Asian Nations (ASEAN), who share with us the common goal of achieving better cooperation, development and administration of criminal justice in the region. As for myself, as a participant of all of the previous Conferences, I have always treasured the opportunity to share and exchange views with our distinguished guests, panel speakers and participants at this meaningful event and I will certainly continue to do so this year. I hope all of you will enjoy this year’s Conference and find it useful. I look forward to this year’s Conference topics sparking productive discussions and honest and in-depth exchanges between speakers and participants.
Lastly, I must also thank the two professional bodies and our colleagues, to which I am heavily indebted, for joining me in hosting this meaningful event. Thank you and please enjoy the Conference.
3 Welcome Messages
Welcome Message from Hong Kong Bar Association
Philip Dykes, SC Chairman
On behalf of the Bar Association, I welcome you all to the Criminal Law Conference 2019.
This is the fifth Criminal Law Conference to be held since 2012. The Department of Justice hosts the event with the Bar Association and the Law Society acting as co-organizers. As with previous conferences, there will be a rich blend of practitioners from both the public and private sectors with contributions from the judiciary.
The topics that have been selected for discussion at the Conference reflect some current concerns and are a reminder that the law needs to keep abreast of changes in society and developments in technology if it is to be fit for purpose in this day and age. The law can only remain current if judges and practitioners attend conferences like this one and enter into lively but measured debate on topical issues.
I look forward to meeting many of you at the Conference.
4 Welcome Message from The Law Society of Hong Kong
Melissa Pang President
I welcome you to the Criminal Law Conference 2019.
Criminal law in Hong Kong has been evolving relatively rapidly in the past few years. Just when I am preparing this message, I note with keen interest the publication of a report by the Law Reform Commission of Hong Kong on voyeurism and non-consensual upskirt-photography. The Commission is recommending the introduction of a new and specific offence of voyeurism to deal with an act of non-consensual observation or visual recording (for example, a photograph, videotape, or digital image) of another person for a sexual purpose; and a new and specific offence in respect of non-consensual upskirt-photography. The need for this sexual offences reform is apparent, in the light of the Court of Final Appeal’s recent ruling that prosecutors can no longer apply the charge of “obtaining access to a computer with a view to dishonest gain” to the use of a person’s own smart-phone or computer. In our submission to the Law Reform Commission in July 2018, we already invited the Commission to consider creating a new offence of upskirt photograph for sexual gratification, by reference to comparable legislation in Scotland and in the UK. With the latest court judgment, serious and urgent consideration must be given to updating our legislation to ensure the criminal justice system in Hong Kong continues to be effective, efficient, and to ensure it upholds the rule of law.
The first and the second topics for the Conference of this year, respectively on sexual offences reform and on computer crimes, are therefore well-timed and aptly chosen. As for the other topics for the Conference, equally they receive much attention in the wake of various court decisions and judgments. For the third topic, distinguished speakers will discuss the latest developments in money laundering offences, after the Court of Final Appeal has clarified various difficult issues in this aspect. Certainly those will have significant impacts on the way money laundering cases are prosecuted and defended in the future. As for trafficking in persons (i.e. the fourth topic), there has already been much deliberation in the public on for example enactment of modern slavery law and criminalization of all forms of human trafficking. Our Court of Appeal on the other hand has examined the obligations of the HKSAR Government in handling cases of trafficking in persons in a landmark judgment.
The Conference this year is the fifth of its series. It follows the success of the previous conferences and has now become an important event for criminal law practitioners. It is a platform where members of the Judiciary, practitioners and academia can share and exchange views on topical and important criminal law practice issues. The Conference is very much well-received. I am told that this year’s Conference has been fully-subscribed soon after it has been launched. I thank my colleagues and the organizing committee for organizing the Conference. We certainly need a bigger venue for the next conference.
Today, we have the honour of having very prominent speakers with us at the Conference. With tremendous experience and expertise, they will certainly provide insightful comments on the above topics. I am sure we would have very fruitful exchanges with them.
I shall keenly await the presentations of the speakers, the exchanges and discussions which follow.
5 Special Guests
The Rt Hon Dame Heather Carol Hallett DBE, MA (Oxon)
Lady Justice Hallett is the Vice President of the Criminal Division of the Court of Appeal of England & Wales.
She was educated at state schools in Hampshire, England and at St Hugh’s College, Oxford. She is married to a fellow lawyer and has two sons.
She was called to the Bar by the Inner Temple in 1972. In 1989 she became a QC and was appointed as a Recorder of the Crown Court. She served as Leader of the South Eastern Circuit and as Director of Public Affairs for the Bar Council of England and Wales. She was the first woman to chair the Bar Council in 1998. Her practice was initially general common law but, as a QC, she specialised in crime, both prosecuting and defending.
She became a High Court judge and was made a DBE in 1999. She was promoted to the Court of Appeal and appointed a member of the Privy Council in 2005.
From 2006 she served on the Judicial Appointments Commission as an inaugural Commissioner and then as Vice Chairman for approximately 5 years.
In 2009 she was appointed the Coroner for the inquests into the deaths of the 52 victims of the 7/7 London bombings.
Since 2010 she has been Chair of the Diversity Committee of the Judges’ Council and a member of the Judicial Executive Board.
She served as Chair of the Judicial College between 2010 and 2014.
In 2011 she was appointed Vice-President of the Queen’s Bench Division and elected Treasurer of the Inner Temple.
In 2013 she was appointed Vice President of the Court of Appeal, Criminal Division.
In 2015 she was invited by the Secretary of State for Northern Ireland to conduct a review of a policy emanating from the Good Friday Agreement by which those who had fled Northern Ireland (the “on the runs”) could receive an assurance they were not currently wanted by the authorities.
She is the current President of the Association of Women Barristers and Patron of Women in Criminal Law.
She is an Honorary Fellow of St Hugh’s College Oxford, the Academy of Experts and the Judicial College. She has been awarded Honorary Doctorates by University College London, the Open University and the Universities of Portsmouth and Derby.
6 Ms Julie Read
Julie Read is the Chief Executive and Director of the Serious Fraud Office, New Zealand. She was appointed in October 2013.
Ms Read is a lawyer who was a prosecutor with the Commonwealth Director of Public Prosecutions in Australia for 13 years. In 2002, she accepted a statutory appointment as Regional Commissioner for Tasmania with the Australian Securities and Investments Commission (ASIC), and concurrently held a number of other national roles with ASIC at the Senior Executive level, including Special Counsel, Litigation, responsible for the conduct of major litigation for ASIC and prior to that Senior Executive, Major Fraud and International. Ms Read studied Law at the University of Tasmania.
7 Conference Programme
0900 – 0915 Opening Remarks 0915 – 1040 TOPIC 1: Sexual offences reform: What is the way forward for reform after three batches of Law Reform Commission consultation papers were released, particularly in light of the fact that very progressive reforms have already been made in other jurisdictions? Introduction by MC Introductory comments on the Topic by Special Guest The Rt Hon Dame Heather Carol Hallett DBE, Vice President of the Court of Appeal, Criminal Division, England and Wales Sharing of views by Speakers • Mr Edwin Choy SC of the Hong Kong Bar Association • Mr Eric Cheung of the Law Society of Hong Kong • Mr Paul Ho of the Department of Justice Discussion (Special Guests, Speakers & Floor) 1040 – 1105 Tea Break 1105 – 1230 TOPIC 2: Computer crimes: Is the existing law in Hong Kong sufficient to tackle crimes committed in cyberspace or by means of computer technology? Impact of the judgment in SJ v Cheng Ka Yee & Others [2019] HKCFA 9 on section 161 of the Crimes Ordinance, Cap. 200. Any international experience in the investigation and prosecution of cybercrimes that can be shared? Introduction by MC Introductory comments on the Topic by Special Guest Ms Julie Read, Chief Executive and Director, Serious Fraud Office, New Zealand Sharing of views by Speakers • Mr Nick Chan of the Law Society of Hong Kong • Ms Vinci Lam of the Department of Justice • Mr David Boyton of the Hong Kong Bar Association Discussion (Special Guests, Speakers & Floor) 1230 – 1400 Lunch Hour
8 1400 – 1525 TOPIC 3: Money laundering, restraint and confiscation: The law in Hong Kong after Carson Yeung and Salim Majed. In money laundering cases, what are “proceeds of crime” which are liable to be confiscated? Is civil forfeiture (e.g. unexplained wealth orders under the Criminal Finances Act 2017) a viable model for Hong Kong? Introduction by MC Introductory comments on the Topic by Special Guest Ms Julie Read Sharing of views by Speakers • Mr William Tam SC of the Department of Justice • Mr Jonathan Midgley of the Law Society of Hong Kong • Mr Derek Chan SC of the Hong Kong Bar Association Discussion (Special Guests, Speakers & Floor) 1525 – 1550 Tea Break 1550 – 1715 TOPIC 4: Trafficking in persons: Our position after the establishment of the Security Bureau Task Force and the designated TIP desk in DoJ. Impact of ZN v SJ & Others CACV 14/2017 [2018] HKCA 473. Is there an imminent need to enact a specific offence to combat human trafficking or do we already have in place sufficient, effective and efficient measures to combat human trafficking? Introduction by MC Introductory comments on the Topic by Special Guest The Rt Hon Dame Heather Carol Hallett DBE Sharing of views by Speakers • Ms Kirsteen Lau of the Hong Kong Bar Association • Ms Maggie Yang of the Department of Justice • Ms Patricia Ho of the Law Society of Hong Kong Discussion (Special Guests, Speakers & Floor) 1715 – 1730 Closing Remarks
9 Reference Papers
TOPIC 1:
Review of sexual offences – Does the Goldilocks principle work?
Overview
1. Sexual offences are said to reach deeper into society than almost any other part of the criminal law1. They deal with the most private and intimate part of life, often demarcating between socially or morally acceptable and unacceptable behaviours, and punishing those unacceptable ones. The law on sexual offences is particularly important for protecting those in society who are vulnerable to abuse and exploitation.
2. In Hong Kong, some of the existing provisions in the Crimes Ordinance (Cap.200) dealing with sexual offences have been criticised as being discriminatory, inconsistent and inadequate2. Many sexual offences originated from the common law or statutes dating back to the nineteenth century, which might no longer reflect modern societal attitudes towards sexual relationships and activities. New forms of sexual aggression have emerged which may be left unchecked. On occasions, some of the injustices were corrected by the courts3 or piecemeal legislation4, but the position still remains that a comprehensive review on this area of law is inevitable.
3. A review on a topic of such breadth and complexity, which is by no means uncontroversial, is not an easy task. This is amply demonstrated by the fact that it has already taken the Review of Sexual Offences Sub-committee of the Law Reform Commission of Hong Kong (“the LRC Sub-committee”) over a decade since 2006 to conduct the exercise, which is still not yet fully completed up to this date. Three substantive consultations papers5 have been published, in which the Sub-committee recommended various changes to existing law.
4. This paper focuses, for discussion purpose, on several key aspects of the LRC Sub-committee’s proposed reform, namely: (i) non-consensual sexual offences; (ii) voyeurism; and (iii) sexual offences involving children and persons with mental impairment, with a view to inviting further exchange of perspectives and visions on the on-going reform.
1 “Setting the Boundaries – reforming the law on sexual offences”. 2000, Home Office, United Kingdom, para 1.1.3. 2 The Law Reform Commission of Hong Kong, Review of Sexual Offences Sub-committee, Consultation Paper on Rape and other Non-consensual Sexual Offences (September 2012) (“the 2012 Consultation Paper”), para 1.10. 3 See e.g., R v R [1992] 1 AC 599 where the House of Lords abolished the marital exemption in rape; Leung v Secretary for Justice [2006] 4 HKLRD 211 and Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 where the Court of Appeal and the Court of Final Appeal respectively read down or struck down a number of provisions in the Crimes Ordinance (Cap. 200) criminalising homosexual buggery. 4 See e.g., section 118O of the Crimes Ordinance (Cap. 200) which abolished the common law presumption that a boy under the age of 14 is incapable of sexual intercourse, buggery or bestiality. 5 They are: (1) the 2012 Consultation Paper; (2) Consultation Paper on Sexual Offences Involving Children and Persons with Mental Impairment (November 2016) (“the 2016 Consultation Paper”); and (3) Consultation Paper on Miscellaneous Sexual Offences (May 2018) (“the 2018 Consultation Paper”).
10 Principles for reforming sexual offences
5. As said, the law on sexual offences in Hong Kong has often been criticised as being discriminatory and inconsistent. A set of guiding principles is necessary to ensure consistency in the choice of reform options for the wide variety of sexual offences. Against this backdrop, the LRC Sub-committee proposed the following self-explanatory guiding principles upon which the reform of the law on sexual offences should be based6: (1) Clarity of the law; (2) Respect for sexual autonomy; (3) The protective principle; (4) Gender neutrality; (5) Avoidance of distinctions based on sexual orientation; (6) Compliance with human rights.
I. Non-consensual sexual offences
Statutory definition of consent
6. There should be no dispute that a person who commits a non-consensual sexual activity against another ought to be punished. Non-consensual sexual activities generally entail the more serious sexual offences such as rape, buggery, indecent assault, etc. At present, consent is not defined by statue. The question of consent is left to the tribunal of facts, giving the term its ordinary meaning7.
7. Whilst noting that the absence of a definition thus far does not appear to have caused significant problems, the LRC Sub-committee took the view that a statutory definition would achieve a greater degree of certainty and clarity8. Under the proposed definition, a person consents to sexual activity if the person (i) freely and voluntarily agrees to the sexual activity; and (ii) has the capacity to consent to such activity9. This definition is supplemented by two other proposed provisions, namely:
(a) Where the accused intentionally deceived the complainant as to the nature or purpose of the relevant sexual act, or intentionally induced the complainant to consent to the relevant sexual act by impersonation, there could be no consent and the accused could not have believed there was any10.
(b) A person is incapable of consenting where, by reason of mental condition, intoxication or age, the person is unable to understand (i) what the sexual conduct is, or (ii) decide whether to engage in the conduct, (iii) or communicate any such decision11.
8. It is said that the words “freely and voluntarily” and “agrees” are easily understood by lay people and will give effect to the sexual autonomy principle that a person has a right to choose to engage in sexual activity or to refuse participation in unwanted sexual activity12.
6 The 2012 Consultation Paper, para 2.41. 7 R v Olugboja [1982] QB 320, at 332A-B. 8 The 2012 Consultation Paper, para 3.7. 9 Ibid, para 3.10. 10 Ibid, para 3.51. C.f. the presumptions provision under section 76 of the Sexual Offences Act 2003 (England and Wales). 11 Ibid, para 3.23. 12 Ibid, para 3.9.
11 Reference Papers
9. That said, having regard to the experience of other jurisdictions, one may reasonably envisage that the question of what constitutes consent will remain contentious. One cannot assume that every threat necessarily renders an agreement not “freely and voluntarily” made. For instance, the courts recognise that the jury may require assistance on the distinction between reluctant but free exercise of choice on one hand, and unwilling submission to demand in fear of more adverse consequences form refusal on the other13. At present, where threats or intimidation not involving the use of force are used to procure a sexual act, but the evidence is such that the tribunal of facts is unsure whether it is a case of reluctant agreement or unwilling submission, the prosecution may resort to an alternative charge14 which does not require proof of the lack of consent15. However, the LRC Sub-committee recommended abolition of this offence as it considered that such cases should be dealt with by reference to the concept of consent. On the other hand, some argue that victims who fall into this grey area equally deserve protection from sexual abuse and that the proposed abolition of the offence of procurement by threats calls for further careful consideration.
10. Another potentially problematic area of the proposed definition of consent is the provision relating to deception. At common law, deception vitiates consent to a sexual act only if it is deception as to identity of the person doing the act or deception as to the nature of the act16. The proposed definition extends such vitiating deception to one of the purpose of the act. In Hong Kong, the notorious cases of “having sexual intercourse to turn or change one’s luck”, which at present are prosecuted as procuring unlawful sexual act by false pretences17, can in future be prosecuted as rape on the basis of a deception as to the purpose of the sexual intercourse. The English Court of Appeal has however warned against defining the word “purpose” too widely18. For example, a defendant’s motive would unlikely amount to the “purpose” of the sexual act. If there is any doubt on whether the deception in a case goes to the nature or purpose of the sexual act, the prosecution may resort to the offence of procurement by false pretences which the LRC Sub-committee recommended to retain19.
Rape and sexual assault by penetration
11. At present, only men can be principal offenders of rape and only women can be victims20. The act of sexual intercourse must consist of penetration of a woman’s vagina by a man’s penis21 but it is not necessary to prove the completion of the intercourse by ejaculation22.
13 See R v Doyle [2010] EWCA Crim 119, para 21. 14 Under section 119(1), Crimes Ordinance (Cap. 200), “A person who procures another person, by threats or intimidation, to do an unlawful sexual act in Hong Kong or elsewhere shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 14 years.” 15 See e.g. HKSAR v Chu Chi Ho [2017] 4 HKLRD 688, in which a police officer was charged with misconduct in public office for having revealed his police identity and uttered threats, thereby procuring sexual services from a prostitute from the Mainland. In para 29, the Court of Appeal incidentally considered the question of consent to be ambiguous and undetermined in the complaint’s evidence. The potential use of the section 119(1) offence was mentioned at para 30 of the judgment. 16 Chan Wai Hung v HKSAR (2000) 3 HKCFAR 288, at 290. 17 Contrary to section 120(1), Crimes Ordinance. See e.g. 香港特別行政區 訴 歐陽國富 (Au Yeung Kwok Fu) CACC 41/2010; 香港 特別行政區 訴 阮毓健 (Yuen Yuk Kin) CACC 454/2011. 18 R v Bingham [2013] 2 Cr App R 29, para 19. 19 The 2012 Consultation Paper, paras 4.69-4.76. 20 See section 118(3), Crimes Ordinance. 21 R v Lee Wing On [1994] 1 HKC 257, at 262. 22 Section 65E, Criminal Procedure Ordinance (Cap. 221).
12 12. The LRC Sub-committee considered that penile penetration of another person’s anus or mouth was as severe an infringement of sexual autonomy as violation of the vagina, and there were no good reasons why men and women victims of non-consensual penile penetration should be treated differently. It therefore recommended that the scope of rape be extended to cover non-consensual penile penetration of the vagina, anus or mouth of “another person”23.
13. Few would seriously question that the culpability of non-consensual penile penetration of the anus should be on par with that of the vagina, as under the existing law, both rape and non- consensual buggery are punishable by life imprisonment24. At first sight, penile penetration of the mouth appears to stand on a different footing because currently it is only punishable by 10 years’ imprisonment if charged as indecent assault25. In its paper, the LRC Sub-committee also recommended a new offence of sexual assault by penetration, which would capture non- penile penetration of the vagina, anus or mouth26. In England and Scotland, both rape and sexual assault by penetration are punishable by life imprisonment27. In other words, all forms of penetration of the vagina, anus or mouth are regarded as the same in terms of culpability, and as the most severe violation of a person’s sexual autonomy. Undoubtedly, the determination of the scope of these two offences would necessarily involve some value judgement. It follows that a “margin of appreciation” should be accorded to the judgement of the legislature in this aspect of the law reform in future28. The rights of individuals and the interests of society will have to be finely balanced and poised so that public confidence in the criminal justice system can be maintained.
Sexual assault
14. The LRC Sub-committee recommended the replacement of the offence of indecent assault with the new offence of sexual assault29. The proposed content of this new offence is a significant and apparently justified departure from the counterpart reforms in England and Wales and Scotland.
15. In England and Wales30 and Scotland31, the new offence of sexual assault only covers the touching or physical contact of the victim, or (in the case of Scotland) ejaculation of semen or emission of urine or saliva sexually onto the victim. The scope of such sexual assault is obviously narrower than that of indecent assault under our existing law, in that our local law also covers conduct which causes the victim to apprehend immediate and unlawful personal violence32.
23 Consultation Paper on Rape and Other Non-consensual Sexual Offences, at para. 4.9. 24 Sections 118(1) and 118A, Crimes Ordinance. 25 Section 122(1), Crimes Ordinance. 26 The 2012 Consultation Paper, para 5.37. 27 Sections 1(4) and 2(4), Sexual Offences Act 2003 (England and Wales); Sections 1 and 2 and Schedule 2, Sexual Offences (Scotland) Act 2009. 28 See Lau Cheong & Anor v HKSAR (2002) 5 HKCFAR 415, paras 100-109. 29 The 2012 Consultation Paper, para 6.30 30 Section 3(1), Sexual Offences Act 2003 (England and Wales). 31 Section 3(1) and (2), Sexual Offences (Scotland) Act 2009. 32 See e.g. HKSAR v Shek Kwok Ngai [2017] 2 HKLRD 629, paras 22-23. In this case, the appellant was convicted of attempted indecent assault by exposing his genitals and holding his erect penis for six seconds while standing close behind the victim. His conduct was filmed by the victim’s smartphone, although the victim was unaware of his conduct at the material time.
13 Reference Papers
16. The LRC Sub-committee considered that the law should not be changed in such a way as would reduce protection to victims33. In its recommendation34, a person (A) commits the offence of sexual assault if A, without the consent of another person (B) and without a reasonable belief that B consents: (a) intentionally touches B where the touching is sexual, ejaculates semen or emits urine or saliva sexually onto B; (b) intentionally does an act of a sexual nature which causes B to apprehend the use or threat of use of immediate and unlawful personal violence; or (c) intentionally does an act of a sexual nature which would have been likely to cause B fear, degradation or harm had it been known to B, irrespective of whether it was known to B.
17. Whilst limb (b) may be regarded as preserving the common law position, limb (c) slightly expands it to address situations where the victim is unaware of the offender’s conduct, e.g. where the offender masturbates behind the victim, or engages in “upskirt” photography.
II. Voyeurism
18. Voyeurism refers to an act of non-consensual observation or visual recording (for example, a photograph, videotape, or digital image) of another person for a sexual purpose35. With the invention of miniaturised cameras and the proliferation of the internet and smartphones, the advancement in technology has led to the rise of voyeurism. Such conduct, which was largely overlooked in the past, finds its way into the limelight in recent years with the growing concern of infringement of personal privacy. Many overseas jurisdictions have already enacted specific legislation to deal with the problem.
19. At present, there is no legislation in Hong Kong which specifically deals with an act of voyeurism. Depending on the actual circumstances of the case and the available evidence, it is normally prosecuted as loitering in public place or common part of building causing concern36, disorderly conduct in public place37, or committing an act outraging public decency38. The general limitation of these offences is that they are applicable only in public places or the relevant conduct must be capable of public view and being seen by two or more persons actually present39. An increasingly common form of voyeurism is committed by the setting up of hidden miniaturised cameras to enable video recording in the absence of the perpetrator. Where a smartphone or digital device is used for photography or video recording, the offence of obtaining access to computer with dishonest or criminal intent40 had been used where appropriate. A patchwork quilt of laws were relied upon but none proved to be entirely satisfactory. In a recent case, the Court of Final Appeal examined the scope of the offence41 and held that the offence of “access to computer with criminal or dishonest intent” under section 161 of the Crimes Ordinance does not cover the use by a person of his/her own computer, unless that use “involves getting access to another computer in which case the conduct is also likely to be covered by one of the other offences created or extended by the Computer Crimes Ordinance 1993”.
33 The 2012 Consultation Paper, para 6.21. 34 The 2012 Consultation Paper, para 6.30, Recommendations 18-20. 35 The 2018 Consultation Paper, para 3.1. 36 Contrary to section160(3) of the Crimes Ordinance. 37 Contrary to section17B(2) of the Public Order Ordinance (Cap. 245). 38 Contrary to common law. 39 For the offence of outraging public decency. See HKSAR v Yeung Hin Kwong Stevens [2008] 2 HKCLRT 411, para 23. 40 Contrary to section 161 of the Crimes Ordinance. 41 Secretary for Justice v Cheng Ka Yee & Ors [2019] HKCFA 9; FACC 22/2018.
14 20. Many countries including the United Kingdom42, Canada43, Australia (in e.g. Victoria44 and the New South Wales45) and New Zealand46 have enacted anti-voyeurism laws in recent decades.
21. In England and Wales, the offence of voyeurism has the following features:
(a) A person (A) observes or makes visual recording of another person (B) who is doing a private act;
(b) A does so for the purpose of sexual gratification, and knows that B does not consent;
(c) B is doing a private act if B is in a place which, in the circumstances, would reasonably be expected to provide privacy, and (a) B’s genitals, buttocks or breasts are exposed or covered only with underwear, (b) B is using a lavatory, or (c) B is doing a sexual act that is not of a kind ordinarily done in public.
22. In New South Wales, the offence of voyeurism has a narrower scope, covering only observation but not intimate visual recording of another person. In New Zealand, on the other hand, the offence of voyeurism covers only visual recording using any device, and not observation of another person for sexual purposes.
23. The LRC Sub-committee recommended adopting the approach taken in England and Wales47. The scope of the voyeurism offence is however constrained by the requiring of the victim “doing a private act”. It does not covers the more common modus operandi Hong Kong, namely taking upskirt photographs or videos.
24. As mentioned in para 17 above, “upskirting” may be dealt with by the new offence of sexual assault. Alternatively, a specific offence may be enacted. Reference can be made to the latest development in England and Wales, where an amendment to the Act to create this offence has recently received the Royal Assent in February 201948. On 30 April 2019, the LRC published a report on “Voyeurism and Non-consensual upskirt-photography” recommending the introduction of a new and specific offence of voyeurism to deal with an act of non-consensual observation or visual recording of another person for a sexual purpose; and a new and specific offence in respect of non-consensual upskirt-photography.
III. Sexual offences involving children and persons with mental impairment (“PMIs”)49
25. The protective principle recognises that children and persons with mental impairment are particularly vulnerable to sexual abuse and exploitation and thus in need of special protection by the law.
42 Section 67, Sexual Offences Act 2003 (England and Wales); Section 9, Sexual Offences (Scotland) Act 2009. 43 Section 162, Canadian Criminal Code. 44 Section 41 A-C, Summary Offences Act 1966. 45 Section 91J, Crimes Act 1900 (NSW) (Act 40 of 1990). 46 Section 216H, Crimes Act 1961 (New Zealand). 47 The 2018 Consultation Paper, para 3.22, Recommendation 3. 48 Voyeurism (Offences) Act 2019, which adds section 67A to the Sexual Offences Act 2003. 49 Section 117(1) of the Crimes Ordinance contains a specific definition of “mentally incapacitated person”. Following the LRC Sub-committee’s approach in the 2016 Consultation Paper, the term “PMI” is used as a general term as opposed to the specific definition.
15 Reference Papers
Uniform age of consent
26. Age of consent is a key feature for sexual offences relating to children. The rationale of establishing an age of consent is to recognise that persons below a certain age may not be able to give informed and meaningful consent to sexual activity and to understand its consequences. The danger of exploitation is a real one due to their young age50. Engaging in sexual activity with a child below the age of consent is, generally speaking, prohibited.
27. The Crimes Ordinance used to stipulate a different age of consent for homosexual activity (21) as opposed to heterosexual activity (16). Such discriminatory treatment has been held to be unconstitutional51. The LRC Sub-committee found no justification for allowing the disparity in the age of consent between homosexual and heterosexual sexual activity to continue to exist in Hong Kong52. All in all, the LRC recommended there should be a uniform age of consent in Hong Kong of 16 years old, which should be applicable irrespective of gender and sexual orientation53.
Absolute liability and strict liability
28. The LRC Sub-committee recommended a separate category of offences involving younger children under the age of 13 in addition to offences involving older children under the age of 16, and apparently favoured imposing absolute liability for anyone to involve the younger category of children in any form of sexual activity54. As to whether absolute liability should apply to offences involving children between 13 and 16 years of age, and whether or not in this context a distinction should be made between penetrative and non-penetrative sexual activity, the LRC Sub-committee left these issues to the subject of public consultation55.
29. In England and Wales, the prosecution has to prove, in sexual offences against a child between 13 and 16 years of age, that the adult defendant does not reasonably believe that the child is 16 or over56. For offences involving children under the age of 13, absolute liability continues to apply.
30. In Scotland, it is a defence to a charge of an offence involving children between the age of 13 and 16 years57 that the defendant reasonably believed that the child had attained the age of 16 years58. The defence is however unavailable to a defendant who has previously been charged with a like offence. Offences involving young children under 13 continue to be of absolute liability.
31. As the law presently stands in Hong Kong, based on the decision of the Court of Final Appeal in 2006, the offence of sexual intercourse with a girl under the age of 1659 is one of absolute liability60. An honest and reasonable belief that the girl aged 16 or above is no defence.
50 The 2016 Constulation Paper, para 2.3. 51 Leung v Secretary for Justice [2006] 4 HKLRD 211 and Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335. 52 The 2016 Consultation Paper, para 2.15. 53 The 2016 Consultation Paper, para 2.26, Recommendation 1. 54 The 2016 Consultation Paper, paras 3.40 and 3.43. 55 The 2016 Consultation Paper, paras 4.53-4.54. 56 See sections 9, 10, 11, 12 and 15, Sexual Offences Act 2003. 57 See sections 28 to 37(1), Sexual Offences (Scotland) Act 2009. 58 See section 39(1)(a), Sexual Offences (Scotland) Act 2009. 59 Contrary to section 124(1), Crimes Ordinance. 60 So Wai Lun v HKSAR (2006) 9 HKCFAR 530.
16 32. The general principles relating to the presumption of mens rea and its displacement have since developed61. This has led to a recent decision by the Court of Final Appeal in 201862, where it was held that for an indecent assault of a consenting child under the age of 16, the offence is one of strict liability but not absolute liability, so that it is a defence for the defendant to prove, on the balance of probabilities, that he/she honestly and reasonably believed the child to be 16 or over. The Court incidentally hinted the possibility of revisiting its 2006 decision on intercourse with child under 16 in the future63.
33. Recognising the need to afford special protection to vulnerable persons against sexual exploitation, the Court nevertheless reiterated its long-standing policy regarding age-related sexual offences to require potential defendants to take extra care to avoid what may be unlawful and steer well away from the line between legality and illegality64.
34. Two points may be noted when the LRC Sub-committee makes its final recommendations in respect of sexual offences involving children between 13 and 16 years of age. First, in the light of the Court of Final Appeal’s recent decision, there appears to be no need to follow the English approach to require the prosecution to prove the absence of reasonable belief on the part of a defendant as to the child’s age. Instead, at the very least, the onus may legitimately be placed on the defendant to prove, by way of defence, an honest and reasonable belief as to the child’s age.
35. Secondly, specifically for sexual intercourse with a child under 16, whilst the presumption of mens rea may justifiably be displaced, what is the appropriate mental element, if any, to supplant the mens rea requirement? The Court of Final Appeal seemed to implicitly suggest that imposing an evidential burden (as opposed to a legal burden) would be a viable option. The prosecution need not set out to prove any mental element as to the child’s age on the part the defendant. However, if there is evidence capable of raising a reasonable doubt that the defendant may have honestly and reasonably believed the child is over 16, the defendant must be acquitted unless prosecution proves beyond reasonable doubt the absence of such belief or any reasonable grounds for such belief. Whether this option is to be adopted remains an open question for discussion. The protection of children from sexual exploitation and the risk of sexual exploitation would be of paramount importance.
Offences in respect of PMIs
36. Broadly speaking, the law on sexual offences in respect of PMIs is underinclusive because of the existing statutory definition of “mentally incapacitated person” (“MIP”). A person is an MIP only if the person is65:
(a) a mentally disordered person or a mentally handicapped person as defined in the Mental Health Ordinance (Cap. 132); and
(b) incapable of living an independent life or guarding the person against serious exploitation, or will be so incapable when of an age to do so. This has been interpreted to mean serious exploitation of a sexual nature66.
61 Notably in Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 and Kulemesin v HKSAR (2013) 16 HKCFAR 195. 62 HKSAR v Choi Wai Lun (2018) 21 HKCFAR 167. 63 Ibid, para 50. 64 Ibid, paras 37-38. 65 Section 117(1), Crimes Ordinance. 66 HKSAR v Cheng Chi Ho [2008] 5 HKLRD 557, para 66.
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37. The law should afford special protection to PMIs from sexual exploitation of any degree. There is no good reason to confine the definition of MIP to those who are vulnerable to only serious exploitation. The LRC Sub-committee therefore recommended the application of sexual offences involving PMIs to all mentally disordered persons and mentally handicapped persons67.
38. On the other hand, by expanding the scope of sexual offences involving PMIs, the offences may become overinclusive if they prohibit all persons from engaging in sexual activity with PMIs under any circumstances. A balance has to be struck between respecting PMIs’ sexual autonomy and the need to protect them from sexual exploitation.
39. PMIs of such a serious degree as to be incapable of forming an informed decision to engage in sexual activity will be protected by the general non-consensual sexual offences because of the proposed definition of consent68. The focus here is the extent of protection which should be offered to PMIs of a lesser degree who nevertheless have the capacity to consent to sexual activity.
40. With reference to overseas legislation, the LRC Sub-committee proposed a set of new offences which are targeted at situations where exploitation of a PMI’s condition may arise from:
(a) particular means being used by perpetrator to obtain the PMI’s consent;
(b) the care of PMIs inside or outside specified institutions (such as hospital); and
(c) abuse of a position of trust or authority, or a relationship of dependency, in respect of a PMI69.
41. For sub-category (a), the exploitative means is an inducement offered or given, a threat made or a deception practised by the perpetrator for the purpose of obtaining consent70. Offences under this sub-category involve actual exploitation.
42. For sub-categories (b) and (c), it appears that actual exploitation is not an element of the offences. The justification of this approach appears to be that the risks of sexual exploitation of PMIs in such situations are particularly high. Furthermore, given the special relationship between the PMI and the perpetrator, there is a reasonable likelihood of facing additional difficulty in eliciting unambiguous evidence from the PMIs during the investigative process. Requiring the prosecution to prove actual exploitation could easily frustrate the underlying objective of protecting PMIs from sexual exploitation.
Concluding remarks
43. The work of the LRC Sub-committee is still on-going, and the issues discussed above only form a small part of those covered by this massive project. A lot of other proposals of law reform that are not mentioned in this paper may well also deserve closer examination and discussions. It is hoped that continued debates would help refine the LRC Sub-committee’s recommendations, with a view to enhancing the public’s awareness and creating a more transparent and equitable criminal system for all members of society as a whole.
67 The 2016 Consultation Paper, para 11.47, Recommendation 35. 68 See para 7 above. 69 The 2016 Consultation Paper, paras 10.2 and 10.78. See also Recommendations 23-31. 70 Ibid, para 10.23.
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TOPIC 2:
Computer crimes: Is the existing law in Hong Kong sufficient to tackle crimes committed in cyberspace or by means of computer technology? Impact of the judgment in SJ v Cheng Ka Yee & Others [2019] HKCFA 9 on section 161 of the Crimes Ordinance, Cap. 200. Any international experience in the investigation and prosecution of cybercrimes that can be shared?
Overview
1. There has been a substantial increase in computer-related crimes in Hong Kong since the enactment of the Computer Crimes Ordinance (Ordinance No.23 of 1993) in 1993. However, there has been relatively little progress in legislative development on cybercrime as the law in place was considered, at least in 2014, effective in meeting the demand for combating technology crime and safeguarding cyber security1. In the recent decision in Secretary for Justice v Cheng Ka Yee and Others [2018] HKCFI 1809, the Court of First Instance ruled that to prove the actus reus of the offence of ”Obtaining access to a computer with a view to dishonest gain”, the prosecution must prove ‘the unauthorized extraction and use of information’ from a computer. When the case was further considered by the Court of Final Appeal, it was held that the offence does not apply to the use by a person of his or her own computer, not involving access to another’s computer. These decisions have wide implications as they could have the potential effect of de-criminalizing certain computer-related crimes. Are our existing laws still sufficient to tackle cybercrime?
2. Cybercrime has evolved as quickly as the information and communication technology (“ICT”) it relies on. In 1996, the police only received 21 computer crime reports2; by 2008, the number had grown to 791 and over the past decade, the number has jumped more than sevenfold3.
1 The Government of the Hong Kong Special Administrative Region Press Release dated 5 November 2014: https://www. info.gov.hk/gia/general/201411/05/P201411050605.htm 2 Inter-departmental Working Group on Computer Related Crime Report, dated September 2000. 3 Year Total No. of Reported Cases Financial Loss (HK$ million) 2017 5567 1393.0 2016 5939 2300.8 2015 6862 1828.9 2014 6778 1200.68 2013 5133 916.9 2012 3015 340.41 2011 2206 148.52 2010 1643 60.38 2009 1506 45.1 Source: https://www.infosec.gov.hk/english/crime/statistics.html
22 3. Cybercrime takes many forms but it can principally be categorized into “cyber-dependent” and “cyber-enabled” crimes. Cyber-dependent crimes are those that can only be committed using computers, computer networks or other forms of ICT. Cyber-enabled crimes are traditional crimes that are increased in their scale or reach by the use of computers, computer networks or other ICT. The more common forms of cybercrime include:
(a) Fraud – Cyber-enabled fraud is the most prevalent type of cybercrime offences in Hong Kong in recent years4. Online fraud can be committed in a number of ways. For example, online banking frauds and Internet enabled card-not-present fraud, fraudulent sales through online retail sites or through fake websites, phishing5, pharming6 and online romance frauds.
(b) Criminal Intimidation / Blackmail – The use of the Internet and online platforms such as social media and photo-sharing sites to send threatening and indecent messages that could attract criminal liability.
(c) Hacking – Hacking is a form of intrusion targeted at computers, including mobile phones and personal tablet devices. It is the unauthorised use of, or access to, computers or computer networks by exploiting identified security vulnerabilities.
(d) Malware – Malware spreads between computers and interferes with computer operations. Types of malware include viruses, worms, Trojans, spyware and ransomware.
(e) Denial-of-service (DoS) attack – An attempt to make a machine or network resource unavailable to its intended users by temporarily or indefinitely disrupting services of a host connected to the Internet. Distributed denial-of-service (DDoS) is where the attack source is more than one, and often thousands of unique IP addresses.
(f) Miscellaneous – Child pornography, online gambling, forged document etc.
4. In the first 11 months of 2018, there were 1,920 reports of online shopping fraud in Hong Kong. Romance scams recorded the biggest surge among all cases of deception. It was reported that one victim even lost HK$180 million to a con artist she had an online relationship with for four years.7 There were also several major cyber attacks in Hong Kong. In January 2018, computers at two local travel agencies were hacked and their clients’ personal information was held for ransom8. In April 2018, the personal data of 380,000 customers of a local broadband service provider, including details of more than 40,000 credit cards, were accessed without authorization. In August 2018, computers of Hong Kong’s Department of Health were hit by ransomware. The personal data of 9.4 million passengers were stolen in a cyber attack on a Hong Kong airline9. It can be seen that cybercrime can disrupt and cause considerable financial and reputational damage.
4 The Government of the Hong Kong Special Administrative Region Press Release dated 25 April 2018: https://www.info.gov. hk/gia/general/201804/25/P2018042500438.htm 5 Phishing scams are a particular kind of mass-marketing fraud. They refer specifically to the use of fraudulent emails disguised as legitimate emails that ask or fish for personal or corporate information from users, for example, passwords or bank account details. 6 Pharming occurs where a user is directed to a fake website, sometimes from phishing emails, to input their personal details. 7 Hong Kong shoppers lose HK$40 million to online crooks in 2018 – 146 per cent rise on last year, South China Morning Post, 17 December 2018. https://www.scmp.com/news/hong-kong/law-and-crime/article/2178384/hong-kong-shoppers- lose-hk40-million-online-crooks-2018 8 After Singapore medical data hack, Hong Kong’s Department of Health becomes latest cyberattack victim, South China Morning Post, 2 August 2018. 9 Cathay Pacific cyberattack far worse than thought after airline admits facing intense hack for more than three months, South China Morning Post, 12 November 2018.
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Existing laws in Hong Kong
5. In 1984, a Working Group was formed within the then Legal Department to consider the need for changes to the criminal law to counter computer-related crimes and the unauthorized accessing of computer systems10. To implement the Working Group’s recommendations, the Computer Crimes Ordinance was enacted in 1993. The Ordinance sought to create two new offences11 - dealing with unauthorized access to a computer by telecommunication and access to a computer with criminal or dishonest intent – and to broaden the coverage of existing offences12 through amending the Telecommunications Ordinance (Cap 106), Crimes Ordinance (Cap 200) and Theft Ordinance (Cap 210). The Computer Crimes Ordinance is the main piece of legislation against computer-related crimes in Hong Kong. Several pieces of legislation were also amended or made to address other wrongdoings which took advantage of the advancement of ICT.
6. The present legislative regime governing computer-related crime in Hong Kong will be outlined below by reference to the framework provided by the Convention on Cybercrime. The Convention on Cybercrime is the first international anti-cybercrime treaty and it sets out four major categories of cybercrime, namely offences against the confidentiality, integrity and availability of computer data and systems (Articles 2 to 6); computer-related offences (Articles 7 to 8); content-related offences (Article 9) and offences related to infringements of copyright and related rights (Article 10).
Illegal Access (Article 2) / Illegal Interception (Article 3)
7. There are two offences under the laws of Hong Kong which aim at illegal access and illegal interception activities. Section 27A of the Telecommunications Ordinance (Cap 106) deals with hacking. It provides that any person who, by telecommunications, knowingly causes a computer to perform any function to obtain unauthorized access to any program or data held in a computer, commits an offence. Section 161 of the Crimes Ordinance (Cap 200) deals with accessing a computer with criminal or dishonest intent. It is a more serious offence and is punishable on conviction on indictment to imprisonment for five years. Both offences were added in 1993 but they are yet to be covered by the Criminal Jurisdiction Ordinance (Cap 461).
8. The Personal Data (Privacy) Ordinance (Cap 486) was brought into force in December 1996 to address the personal data privacy concern. The Ordinance applies to the collection, storage and use of personal data both online and offline. Anyone who contravenes the Ordinance is liable to enforcement action by the Privacy Commissioner. An individual who suffers damage from a contravention of the Ordinance may obtain compensation from the data user concerned.
9. The Interception of Communications and Surveillance Ordinance (Cap 589) was enacted in 2006 to regulate the conduct of interception of communications and the use of surveillance devices by or on behalf of public officers and to provide for related matters.
10 The Legislative Council Brief for the Bill dated 25 March 1992. 11 Section 27A of the Telecommunications Ordinance (Cap 106) and section 161 of the Crimes Ordinance (Cap 200). 12 Sections 59, 60, 85 of the Crimes Ordinance (Cap 200), sections 11 and 19 of the Theft Ordinance (Cap 210).
24 Data Interference (Article 4) / System Interference (Article 5) / Misuse of Devices (Article 6)
10. Sections 59 to 62 of the Crimes Ordinance (Cap 200) deal with criminal damage. The definition of “property” under section 59 was amended in 1993 to include “any program, or data, held in a computer or in a computer storage medium, whether or not the program or data is property of a tangible nature”. “Destroying or damaging any property” in relation to a computer was also extended to include the “misuse of a computer”.
11. The offence of burglary under section 11 of the Theft Ordinance (Cap 210) covers unlawful entry with intent to unlawfully cause a computer to function other than as it has been established or to alter, erase or add any computer program or data.
Computer-related Forgery (Article 7) / Computer-related Fraud (Article 8)
12. Hong Kong’s present provisions dealing with forgery are found in sections 68 to 79 of the Crimes Ordinance (Cap 200). The offence of false accounting under section 19 of the Theft Ordinance (Cap 210) was amended in 1993 by providing that “record” includes “a record kept by means of a computer”. The meaning of making false entry in bank book under section 85 of the Crimes Ordinance (Cap 200) was also extended to falsification of the books of account kept by any bank in electronic means.
13. Computer-related fraud can also be dealt with by section 161 of the Crimes Ordinance (Cap 200). Under section 161, it is an offence for a person to access a computer with intent to commit an offence; with a dishonest intent to deceive; with a view to dishonest gain; or with a dishonest intent to cause loss to another, whether on the same occasion as he obtains such access or on any future occasion.
14. Additionally, the Unsolicited Electronic Messages Ordinance (Cap 593), which was enacted in May 2007, prohibits fraudulent activities related to the sending of multiple commercial electronic messages.
Offences related to child pornography (Article 9)
15. Offences related to child pornography are categorized as content-related offences in the Convention on Cybercrime. Hong Kong enacted the Prevention of Child Pornography Ordinance (Cap 579) in 2003. It establishes a wide statutory framework for the investigation and prosecution of child pornography in all forms, including online child pornography.
16. Gambling in Hong Kong has been regulated since 1977 when the Gambling Ordinance (Cap 148) was enacted. With respect to content-related offences, in 2002, section 2 of the Gambling Ordinance (Cap 148) was amended by extending the definition of “bookmaking” to include bookmaking by “online medium (including the service commonly known as the Internet)”.
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Offences related to infringements of copyright and related rights (Article 10)
17. Copyright-related offences are found in two ordinances, the Copyright Ordinance (Cap 528) and the Prevention of Copyright Piracy Ordinance (Cap 544).
18. Apart from legislative measures, the Hong Kong government has put in considerable efforts in strengthening its law enforcement resources in tackling computer crimes and in obtaining the cooperation of the private sector in combating those crimes. To strengthen the Hong Kong Police Force in fighting technology crimes and handling cyber security incidents, the Force’s Technology Crime Division was upgraded to the Cyber Security and Technology Crime Bureau (CSTCB) in 2015. It is responsible for handling cyber security issues and carrying out technology crime investigations, computer forensic examinations and prevention of technology crime. CSTCB has been closely working with other government departments and industry stakeholders to strengthen the reliability of the information system networks of enterprises, and guard against cyber attacks. CSTCB conducts various types of cyber security drills with industry stakeholders and holds cyber security seminars regularly to enhance the capabilities of Hong Kong enterprises in handling cyber security incidents13.
19. Sectoral regulators in Hong Kong also press forward with cybersecurity regulation for specific industries. Both the Securities and Futures Commission and the Hong Kong Monetary Authority (HKMA) have provided a range of guidance and circulars on cybersecurity to the intermediaries they regulate14. The HKMA has launched for the banking system a Cybersecurity Fortification Initiative, which serves to raise the cybersecurity of the banks in Hong Kong. It has also launched the Enhanced Competency Framework on Cybersecurity to equip cybersecurity practitioners with the skills and knowledge.
Is the existing law sufficient to tackle technology crime?
20. The Computer Crimes Ordinance was enacted in 1993. While Hong Kong has not introduced any stand-alone computer crime legislation, the other common law jurisdictions have undergone significant reform of their laws in relation to cybercrime. For example, in the United Kingdom, some important reforms were made to the Computer Misuse Act 1990 by Part 5 of the Police and Justice Act 2006 (UK). These amendments attempted to address some of the specific problems that had arisen under the existing law, particularly in relation to DoS attacks15. The amendment also introduced a new offence dealing with trafficking in “hacking devices”.
21. The second major reform to the Computer Misuse Act was enacted as part of the Serious Crime Act 2015 (UK). The first significant change is the creation of a new offence of unauthorized acts carried out on a computer causing, or creating the risk of, serious damage to the economy, the environment, to the national security or human welfare. The second group of changes arose out of the need to comply with the EC Directive on attacks against information system16. The Serious Crime Act 2015 (UK) also extends the jurisdictional reach of the United Kingdom in relation to offences under the Act.
13 The Government of the Hong Kong Special Administrative Region Press Release dated 29 November 2017: https://www. info.gov.hk/gia/general/201711/29/P2017112900322.htm 14 Securities and Futures Commission website, “SFC and HKMA address hacking risks associated with internet trading”, 27 October 2017 https://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=17PR133 15 Explanatory Notes, Police and Justice Act 2006 (UK), [301] 16 2013/40/EU
26 22. By comparison, there has been relatively little development in the computer crime legislation in Hong Kong. Cyber-enabled crimes are generally prosecuted with substantive offences and inchoate offences wherever applicable. For example, the usual charges brought for an email scam which successfully results in financial loss include fraud and deception offences under the Theft Ordinance (Cap 210) and the common law offence of conspiracy to defraud; where the computer crime has generated proceeds and the proceeds are traceable, the person who has dealt with the proceeds may be charged with “money laundering”, i.e. dealing with property known or believed to represent proceeds of indictable offence, contrary to section 25 of the Organized and Serious Crimes Ordinance (Cap 455).
23. For cyber-dependent crimes such as DoS or DDoS attacks, the offenders would be prosecuted under section 60 or section 161 of the Crimes Ordinance (Cap 200). In fact, section 161 of the Crimes Ordinance (Cap 200) has been regularly applied in prosecuting computer-related crimes such as uploading sex videos onto the Internet17; sending an email which contained false information18; using a computer to make an application on the Internet for a credit card for some fraudulent scheme19, using private email account to forward a company email to another by using the copy and paste method20; and using a mobile phone to take clandestine images in private places21.
Impact of judgment of SJ v Cheng Ka-yee and Others
24. Section 161 of the Crimes Ordinance (Cap 200) has enabled many reported computer crime cases to be dealt with. However, in the recent decision of the Court of First Instance in Secretary for Justice v Cheng Ka-Yee [2018] HKCFI 1809, four primary school teachers who had used their mobile phones and a school computer to leak admission interview questions of the school were acquitted of the offence of “Obtaining access to a computer with a view to dishonest gain for another” under section 161(1)(c) of the Crimes Ordinance (Cap 200). Their acquittal by the Magistrate was upheld by the Court of First Instance. The Judge ruled that section 161(1)(c): “…only prohibits the unauthorized and dishonest extraction and use of information” and that “obtaining access to a computer” and “using a computer” have different meanings. To prove the actus reus of the offence, the prosecution must prove “the unauthorized extraction and use of information” from a computer.
25. It is worth considering the impact of the decision on a range of computer-related crimes.
26. Section 161(1) of the Crimes Ordinance provides: “ 161. Access to computer with criminal or dishonest intent (1) Any person who obtains access to a computer— (a) with intent to commit an offence; (b) with a dishonest intent to deceive; (c) with a view to dishonest gain for himself or another; or (d) with a dishonest intent to cause loss to another, whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable on conviction upon indictment to imprisonment for 5 years.” (underline added)
17 HKSAR v Wong Ngai Sang DCCC 200/2017 18 HKSAR v Yip Kim Po & 5 Others CACC 353/2010 19 HKSAR v Lai Mei Yuk, Candy CACC 427/2003 20 HKSAR v Siu Pui Yiu FAMC 47/2012 21 HKSAR v Ho Siu-hei Jason [2018] HKCFI 974
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27. The actus reus of the offences under section 161 of the Crimes Ordinance (Cap 200) is “obtaining access to a computer” and each of the four situations contained in subsections (a) to (d) constitutes the mens rea of the respective crime: HKSAR v TSUN Shui Lun [1999] 3 HKLRD 215. Thus, the decision of the Judge, although involving only section 161(1)(c), would have the same effect on all four types of access under section 161(1).
28. The prosecution appealed to the Hong Kong Court of Final Appeal. The certified point of law of great and general importance involved in the case was, “What is the scope of the actus reus of the offence under section 161(1)(c) of the Crimes Ordinance (Cap.200)? In particular, is it restricted to the unauthorized extraction and use of information from a computer?”22
29. A number of constructional questions arose but in the end the ground of importance was narrowed to “whether the offence created by section 161(1)(c) of the Crimes Ordinance covers a use by a person of their own computer with the requisite intent?” On 4 April 2019, the Court handed down its judgment and answered this question in the negative23.
Concluding remarks
30. Hong Kong has put in place legislation and other measures to deal with computer crimes. Compared with traditional crimes, the law enforcement agencies generally encounter greater challenges in investigating cybercrimes24, including the need to gather evidence among different physical or virtual locations. While the scope of the offence under section 161(1) of the Crimes Ordinance (Cap 200) has been clarified by the Court of Final Appeal to a certain extent, a sub-committee in the Law Reform Commission of Hong Kong has commenced its study on the topic of cybercrime since January 2019. The existing legislation and other relevant measures will be reviewed with reference to the relevant developments in other jurisdictions to make sure that Hong Kong’s cybercrime laws can keep abreast of the international trends.
22 [2018] HKCFA 49; FAMC 51/2018 23 [2019] HKCFA 9; FACC 22/2018 24 The Government of the Hong Kong Special Administrative Region Press Release dated 25 April 2018: https://www.info.gov. hk/gia/general/201804/25/P2018042500438.htm
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TOPIC 3:
Money laundering, restraint and confiscation: The law in Hong Kong after Carson Yeung and Salim Majed. In money laundering cases, what are the “proceeds of crime” which are liable to be confiscated? Is civil forfeiture (e.g. unexplained wealth orders under the Criminal Finances Act 2017) a viable model for Hong Kong?
Overview
1. In Hong Kong, the anti-money laundering regime is mainly contained in the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap. 405 (“DTROP”) and the Organized and Serious Crimes Ordinance, Cap. 455 (“OSCO”)1. These two Ordinances contain provisions which are aimed at criminalizing the laundering of property known or believed to derive from drug trafficking and other serious criminal activities and striping away the economic benefits obtained by a defendant in connection with the commission of the relevant offences.
2. Money laundering usually involves “a scheme whereby proceeds of crime are ‘laundered’ by transforming them into other types of property so that they are clothed with legitimacy and their origin is concealed.2” It makes it difficult for law enforcement agencies to trace the transactions and identify the source of the proceeds or the underlying criminal deeds. It is thus seen as a serious crime in Hong Kong and other jurisdictions alike.
3. Under section 25(1) of OSCO and DTROP, it is an offence to deal with any property when knowing or having reasonable grounds to believe that such property in whole or in part directly or indirectly represents a person’s proceeds of an indictable offence. Both section 25(1) of OSCO and section 25(1) of DTROP are virtually identical with the exception that the offence under DTROP is concerned with dealing with proceeds of drug trafficking whereas that under OSCO covers all indictable offences. Recently, with amendments to the Protection of Endangered Species of Animals and Plants (Amendment) Ordinance on 1 May 2018, trading, possession or control of endangered species qualify as indictable offences and dealing with proceeds of these crimes constitutes money laundering under OSCO.
4. Section 9 of DTROP3 and section 14 of OSCO4 set out the application and procedure for making a restraint order. Section 3 of DTROP and Section 8 of OSCO introduced confiscation orders designed to catch the profits of major crime. This paper will focus on the money laundering offence prosecuted and the proceeds of crime restrained and confiscated under OSCO, save where expressly stated.
1 Prevention of Bribery Ordinance, Cap. 201 (section 122A), Criminal Procedure Ordinance, Cap. 221 (sections 102-103) and Dangerous Drugs Ordinance, Cap. 134 (section 56) also contain provisions for forfeiture of property, proceeds or instrumentalities of criminal defendants but this paper will focus on OSCO, save where expressly stated. 2 HKSAR v YAN Sui Ling (2012) 15 HKCFAR 146 at §47. 3 To be read together with Order 115, rule 3, Rules of the High Court (Cap. 4A). 4 To be read together with Order 117, rule 4, Rules of the High Court (Cap. 4A).
32 The offence of money laundering
5. The actus reus of an offence under section 25(1) of OSCO is “dealing” with property. “Dealing” is broadly defined to include (1) receiving or acquiring, (2) concealing or disguising, (3) disposing of or converting, (4) bringing into or removing out of Hong Kong, and (5) using to borrow money or as security.
6. The mens rea of the money laundering offence has two limbs: “knowing” or “having reasonable grounds to believe”.
The law in Hong Kong after Carson Yeung and Salim Majed
7. On 11 July 2016, the Court of Final Appeal (“CFA”) handed down its judgment in two cases concerning the law and principles in relation to the money laundering offence: HKSAR v Yeung Ka Sing, Carson and HKSAR v Salim Majed (2016) 19 HKCFAR 2795 (heard together). The four main issues considered by the CFA were:
(1) On a charge of dealing with proceeds of crime contrary to section 25(1) of OSCO, is it necessary for the prosecution to prove, as an element of the offence, that the proceeds being dealt with were in fact proceeds of an indictable offence? (“The proceeds issue”)
(2) In considering the mens rea element of a charge contrary to section 25(1) of OSCO, to what extent does a trial judge need to make positive findings as to a defendant’s belief, thoughts, intentions at the material time even though the judge rejects the defendant’s testimony? (“The mens rea issue”)
(3) In the context of the offence of money laundering under section 25 of OSCO how does the rule against duplicity operate? (“The duplicity issue”)
(4) What is the correct formulation in considering whether a defendant had reasonable grounds to believe in the context of section 25(1) of OSCO? (“The Pang Hung Fai issue”)
The proceeds issue
8. Having considered, inter alia, the language of section 25(1) of OSCO, the 1995 amendments to the previous provisions creating the offence of money laundering, the existence of a defence involving disclosure of suspicious transactions and the comparison with money laundering offences in other jurisdictions, the CFA declined to follow the law in England and Wales and confirmed to be correct the existing law as set out in HKSAR v Wong Ping Shui (2001) 4 HKCFAR 29 and Oei Hengky Wiryo v HKSAR (No. 2) (2007) 10 HKCFAR 98 that it is not necessary for the prosecution to prove, as an element of the offence, that the proceeds being dealt with were in fact the proceeds of an indictable offence. The status of the property being such proceeds is an element of the mens rea and not the actus reus. It is only necessary for the prosecution to prove that the defendant dealt with certain property in circumstances where he or she knew or had reasonable grounds to believe that such property represented the proceeds of an indictable offence.
5 FACC 5 & 6/2015 and FACC 1/2015.
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The mens rea issue & the Pang Hung Fai issue
9. The CFA went on to provide clarification as to what constitutes “having reasonable grounds to believe” as prescribed by section 25(1) of OSCO. It explained its earlier decision in HKSAR v Pang Hung Fai (2014) 17 HKCFAR 98 and endorsed the approach as propounded by the Appeal Committee in Seng Yuet Fong v HKSAR [1999] 2 HKC 833, namely:
“To convict, the jury had to find that the accused had grounds for believing; and there was the additional requirement that the grounds must be reasonable: That is, that anyone looking at those grounds objectively would so believe.”
10. The CFA said of the ambit of its judgment in Pang Hung Fai:
“… its central tenet is that one must look to the grounds as perceived by the defendant in deciding whether the mens rea requirements are proved. It is on that basis that (i) the Shing Siu Ming approach was disapproved and various aspects of the earlier decisions put aside as “distractions”; (ii) the Court held that it was erroneous to exclude the defendant’s personal beliefs, perceptions or prejudices from the assessment of his mens rea; (iii) it was erroneous to adopt as the applicable standard the question whether, on the available grounds, the defendant “could”, as opposed to “would” reasonably have been led to the belief that the property consisted of the proceeds of crime; and (iv) a significant mens rea element reflecting a strong element of moral blame is attributed to the second limb of the offence under s 25(1), justifying the setting of the same maximum penalty under both the “knowing” and the “having reasonable grounds to believe” limbs.”
11. As made clear by the CFA, the applicable test to prove the mens rea of “having reasonable grounds to believe” is whether on the grounds available to him, the accused would reasonably have been led to have the requisite belief. It comprises of two elements: (i) an objective element, i.e. such grounds must be reasonable that a common sense, right-thinking member of the community would so believe; and (ii) those grounds were known to be defendant. In determining this, a defendant’s beliefs, perceptions or prejudices are to be considered and given such weight as is warranted.
12. The conclusion which a court reaches on the issue of whether a defendant had the relevant reasonable grounds to believe depends on the state of the evidence (see Pang Hung Fai at §§59-89 and Yeung Ka Sing, Carson at §§92-128). If a defendant is entirely disbelieved, it remains necessary for the court to be satisfied that the case against him has been proved beyond reasonable doubt. If he provides no evidence at all of his beliefs and perceptions etc, the court is left to draw whatever inferences may be proper based on the prosecution’s evidence.
The duplicity issue
13. Under the Indictment Rules made in 1976 by the Criminal Procedure Rules Committee pursuant to powers conferred by the Criminal Procedure Ordinance, Cap. 221, each charge in an indictment can only properly allege a single offence. This is commonly referred to as the rule against duplicity. The question of duplicity arises where the conduct alleged in a charge involves a number of acts each of which is capable of being treated as a separate offence.
34 14. In both Yeung Ka Sing, Carson and Salim Majed, each of the counts charged money laundering on the basis of numerous deposits into a bank account. The CFA considered whether, and if so, how, the rule against duplicity applies in the context of money laundering. It held that most of the forms of “dealing” set out in the definition in section 2 of OSCO involve conduct that would normally consist of a single act but some forms of dealing, in particular concealing, could cover a continuing process. Where a number of acts of money laundering are connected in such a way that they can be regarded as forming part of the same transaction or criminal enterprise then it will be legitimate to charge them in a single count unless there is a risk of injustice to the defendant (at §§155-159).
Restraint and confiscation of “proceeds of crime” in money laundering cases
Restraint
15. The exercise of jurisdiction is limited to the Court of First Instance. The purpose of a restraint order is stated in section 19(2) of OSCO to be “making available for satisfying the confiscation order or, as the case may be, any confiscation order that may be made in the defendant’s case the value for the time being of realisable property held by any person by the realisation of such property.”
16. Pursuant to section 15 of OSCO, the court has the power to restrain the “realisable property” of a respondent/defendant. “Realisable property” is defined in section 12 of OSCO and it is not limited to illegitimately acquired property.6 Before making the restraint order, generally the court has to be satisfied of three requirements as set out in section 14(1) of OSCO, namely:-
(a) proceedings have been instituted in Hong Kong against the defendant for a specified offence: section 14(1)(a);
(b) the proceedings have not been concluded: section 14(1)(b); and
(c) there is reasonable cause to believe that the defendant has benefited from that specified offence: section 14(1)(c)(ii).
17. The money laundering offence under section 25(1) of OSCO is included in Schedule 1 of OSCO and as such, it is a “specified offence” for the purposes of a restraint order and other provisions of OSCO. The standard of proof for the Secretary for Justice in an application for a restraint order is “on the balance of probabilities”: section 8(8B) of OSCO (see also §25 of HKSAR v Leung Shun Wing [2015] 6 HKC 57).
18. As required under section 14(1), a restraint order is made only after the court is satisfied that there is reasonable cause to believe that the defendant has benefited from a specified offence. This presupposes that the court is satisfied that there is reasonable cause to believe that the defendant has committed that offence in the first place. Therefore, if the court is not satisfied that the defendant has committed the specified offence, he could not have benefited from “that specified offence” (see Secretary for Justice v Wu Li Hui [2009] 1 HKLRD 78 at §§18-19; Leung Shun Wing at §19).
6 See HKSAR v Shing Shiu Ming (No. 2) [2000] 3 HKC 83 and R v Chrastny (No. 2) [1991] 1 WLR 1385.
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19. Where the defendant has been charged with the money laundering offence under section 25(1) of OSCO, the court, in considering whether there is reasonable cause to believe that the defendant has committed the offence of money laundering, should apply the law in relation to the mens rea element of “having reasonable grounds to believe” as laid down in Pang Hung Fai and clarified in Yeung Ka Sing, Carson and Salim Majed by the CFA (see Leung Shun Wing at §§13-19).
Confiscation
20. In HKSAR v Li Kwok Cheung George (2014) 17 HKCFAR 319, the CFA considered the central purpose of the provisions governing confiscation orders: “The provisions governing confiscation orders are aimed at depriving a defendant of his proceeds of the relevant offence to the extent that he has benefited from such offence7.”
21. Under section 8 of OSCO, the District Court or the Court of First Instance may exercise jurisdiction to make a confiscation order for a person appearing before it to be sentenced in respect of a “specified offence” – which is defined as “any of the offences specified in Schedule 1 or Schedule 2” and they include the section 25(1) money laundering offence. Section 8(1) of OSCO delineates two sets of circumstances in which the Secretary for Justice may apply for a confiscation order of the proceeds of a specified offence. The first is under section 8(1)(a) (i) where a person has been convicted of one or more specified offences before the court for which he is to be sentenced.
22. The second is under section 8(1)(a)(ii) where proceedings for one or more specified offences have been instituted against a person but have not been concluded because the person has died or absconded. This is commonly referred to as the absconder proceedings.
23. In either of those circumstances, the Secretary for Justice may apply to the court for a confiscation order pursuant to section 8 of OSCO.
24. In HKSAR v Lo Wai Man and Others [2011] 5 HKLRD 295, the Court of Appeal described the statutory scheme for making a confiscation order under OSCO as follows:
“8. The relevant statutory scheme for the issuance of a confiscation order is set out in sections 8 and 11 of OSCO. Regard must also be made to the definitions contained in sections 2 and 12. The relevant scheme can be summarised as follows:
1) The Court has to decide whether the conviction of the defendant was of a specified offence or organized crime. (section 8(1)(a) and section 2)
2) The Court decides whether the defendant had benefited from the specified offence or organized crime of which he was convicted. (section 8(4) or (5))
3) The Court considers whether the defendant’s proceeds of the specified offence or organized crime total at least HK$100,000. (section 8(4))
4) The Court then decides what was the value of his benefit from the specified offence or organized crime. (section 2(8) and section 8(6))”
7 At §40.
36 25. Section 8(8B) of OSCO specifies that the standard of proof required to determine any question arising under OSCO as to whether a person has benefited from a specified offence or organized crime, or the amount to be recovered pursuant to a confiscation order, shall be “on the balance of probabilities” (see also §25 of Secretary for Justice v Fang Jinan HCMP 599/2016).
26. As discussed above, it is not necessary in the prosecution of a money laundering charge to prove the property being the actual proceeds of a predicate offence. On the other hand, in applying for a confiscation order, the Secretary for Justice is required to prove that the defendant (or respondent) has benefited from a specified offence. That specified offence may be the offence of money laundering under section 25(1) of OSCO or any predicate offence (included in Schedules 1 and 2) giving rise to the proceeds.
27. In examining the 1995 amendments to the previous provisions creating the offence of money laundering, the CFA in Yeung Ka Sing, Carson and Salim Majed stated:
“47. As we have seen, as OSCO stood in 1994, the actus reus of the section 25 offence involved the defendant assisting a “relevant person” to keep, hide or use his proceeds of an indictable offence with the mens rea of knowing or having reasonable grounds to believe that such person had committed or benefited from the offence.
48. The power to order confiscation was likewise premised on the property subject to confiscation being shown to be the actual proceeds of an indictable offence in the defendant’s hands. Such property had to represent a payment or other reward received by him in connection with the commission of the offence.
49. Accordingly, in OSCO 1994: (a) Section 2(6) relevantly provided: “For the purposes of this Ordinance – (a) any payments or other rewards received by a person at any time ... in connection with the commission of an offence are his proceeds of that offence; and (b) the value of his proceeds of that offence is the aggregate of the values of those payments or rewards.”
(b) And section 2(8) provided: “For the purposes of this Ordinance, a person who has at any time .... received any payment or other reward in connection with the commission of an offence ... has benefited from that offence ...”
50. As we have seen, the concepts of “his proceeds” and “benefit” fed into the old section 25, making it clear that the property had to consist of the actual proceeds of crime. 51. Those concepts also fed into the confiscation provisions. Where a defendant had been convicted and was to be sentenced in respect of a specified offence, the court was required to determine whether he had benefited from the specified offence and if so, whether his proceeds totalled at least $100,000. If so, the court went on to determine the amount to be recovered and made a confiscation order (with any needed adjustments in the light of other court orders) that he pay that amount.
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52. But once the “relevant person” and its associated concepts were taken out of the section 25 offence by the 1995 amendments, the liability regime diverged in this crucial respect from the confiscation regime. The concepts involving a person’s proceeds and benefit flowing from the receipt of payments or other rewards in connection with the commission of a specified offence continue to be employed for the purposes of the confiscation regime, as this Court recognized in HKSAR v Li Kwok Cheung George. But those concepts no longer mesh with the actus reus elements of the present section 25. 53. The fact that the legislature chose to restructure the section 25 offence to disengage it from the concepts of the “relevant person”, “his proceeds”, “payments or other rewards received in connection with an offence” and “benefiting from” an offence – the concepts that previously had made it clear that the proceeds actually had to derive from an indictable offence – is a strong indication that the statutory intent has changed. It no longer requires proof that the property dealt under section 25(1) consists of the actual proceeds of an indictable offence. This is underlined by the contrasting retention of those concepts in relation to the confiscation provisions.”
28. In Li Kwok Cheung George, the CFA endorsed the following comment made by Lord Bingham of Cornhill in R v May (HL(E)) [2008] 1 AC 1028:
“The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provided for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the defendant’s net profit after deduction of expenses or any amounts payable to co-conspirators.”
29. In HKSAR v Shing Siu Ming (No. 2) [2000] 3 HKC 83, it was also held by the court that the phrase “benefited from drug trafficking” in the Drug Trafficking (Recovery of Proceeds) Ordinance meant the aggregate value of the payments or other rewards made to a defendant in connection with drug trafficking, and that it was directed to the gross payments received in relation to drug trafficking, not merely “profit”.8
Whether civil forfeiture a viable model for Hong Kong
30. Some jurisdictions, such as United Kingdom, Commonwealth Australia, Canada, Ireland and United States, adopt a civil forfeiture regime. It is a remedial statutory tool designed to forfeit proceeds of crime and property used to facilitate unlawful activity. In a case of civil forfeiture, the proceedings are brought in rem against the property itself, rather than in personam against an individual. Where the government proves by a preponderance of evidence that the property was derived from or used to commit a crime, the court is empowered to transfer title of the property to the government. Civil forfeiture is non-conviction based which does not require the government to prove a person’s guilt beyond a reasonable doubt.
31. In general, civil forfeiture offers a less onerous regime as compared to a confiscation regime which is conviction-based and it adopts more relaxed procedures and rules of evidence. As the proceedings are brought in rem against the property, the regime may also be more effectively employed where the individual concerned has disappeared or never entered the jurisdiction.
8 See also HKSAR v Lin Kei Tat [2016] 1 HKLRD 482 at §§26-27.
CRIMINAL LAW 38 2019 CONFERENCE 32. Recently9, the Criminal Finances Act 2017 introduces a regime of unexplained wealth orders in the United Kingdom. Where the court is satisfied that there are “reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient”10 to allow the respondent, generally a politically exposed person or someone connected to serious crime, to obtain the specified property, the court may grant an unexplained wealth order requiring the respondent to explain his interest in the subject property and how he had obtained the property (especially how the costs incurred in obtaining it were met)11. Failure without reasonable excuse to comply with the order means that the property is presumed to be recoverable as the proceeds of crime.
33. In Hong Kong, civil forfeiture does exist but to a limited extent. It is restricted to drug-related offences where DTROP provides for forfeiture of monies seized when being imported into or exported from Hong Kong without a need to prove a criminal offence12. Section 13 of the United Nations (Anti-Terrorism Measures) Ordinance, Cap. 575 also provides that the Court of First Instance may order the forfeiture of terrorist property which represents any proceeds arising from a terrorist act, or which was used or is intended to be used to finance or otherwise assist the commission of a terrorist act.
34. There are advantages that could be gained from a regime of civil forfeiture. It will be beneficial for Hong Kong to determine its own course on confiscation in light of local conditions and the experience of other jurisdictions.
9 With effect from 31 January 2018. 10 Section 1 of the Criminal Finances Act 2017 inserts sections 362A-362I into Chapter 2 of Part 8 of the Proceeds of Crime Act 2002. Under those provisions, the High Court may grant an unexplained wealth order if the following conditions are met: (1) the respondent holds the property; (2) the property is worth over £50,000; (3) there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property; and (4) the respondent is a politically exposed person; there are reasonable grounds to suspect that the respondent is, or has been, involved in serious crime (whether in a part of the United Kingdom or elsewhere); or a person connected with the respondent is, or has been, involved in serious crime. 11 Section 362A(3) of the Proceeds of Crime Act 2002. 12 A civil forfeiture regime is available under section 24D of DTROP in respect of monies in excess of HK$125,000, seized and detained during import into or export from Hong Kong and representing proceeds of drug trafficking or property used or intended to be used in drug trafficking.
39 40 41 Reference Papers
TOPIC 4:
The future of Hong Kong’s anti-human trafficking laws
Overview
1. Despite the Hong Kong Special Administrative Region Government (“HKSARG”)’s efforts in combating trafficking in persons (“TIP”) such as the establishment of a high-level inter-bureau / departmental Steering Committee (“Steering Committee”) and promulgation of the Action Plan to Tackle TIP and to Enhance Protection of foreign domestic helpers (“FDHs”) in Hong Kong (“Action Plan”), the TIP Report published by the Department of State of the United States (“TIP Report”) in June 2018 has found that Hong Kong does not fully meet the minimum standards for the elimination of TIP, and has placed Hong Kong on “Tier 2 Watch List” for three consecutive years since 2016,1 putting Hong Kong in the same rank of countries such as Bangladesh, Iraq and Kuwait in its performance in combating TIP2.
2. In the TIP Report, one of the main criticisms is the absence of a comprehensive anti-trafficking law that criminalizes all forms of trafficking, including sex trafficking and forced labour without trans-border movement. Hong Kong is blasted for lagging behind its neighbours3. Take Macau as an example, it formulated the Law No. 6/2008 on “Combat the Crime of Trafficking in Persons” which has come into force since June 2008.
3. In recent years, there has been heated debates as to whether there is an imminent need for Hong Kong to enact a specific offence to combat TIP or we already have in place sufficient effective and efficient laws to combat TIP. In view of the complexity of the issue, this paper does not seek to provide a definite answer but to set the scene and hopefully provide some insights for further discussion. This paper begins with the meaning of TIP and forced labour and the applicability of the relevant international conventions to Hong Kong. The issue will then be explored by considering the landmark Hong Kong case of ZN v Secretary for Justice4 and a private member’s bill for a specific TIP law in Hong Kong. The paper will then examine the current legislative framework in different scenarios and draw reference from developments that have taken place in other jurisdictions.
1 In the TIP Report, the Department of State places each country onto one of 4 tiers, namely, Tier 1, Tier 2, Tier 2 Watch List and Tier 3, based on the extent of their governments’ efforts to comply with the “minimum standards for the elimination of trafficking” found in the United States’ Trafficking Victims Protection Act of 2000, as amended (“TVPA”). While Tier 1 is the highest ranking, it does not mean that a country has no human trafficking problem. Rather, a Tier 1 ranking indicates that a government has made efforts to address the problem that meets the TVPA’s minimum standards. 2 For more examples, Colombia and the Philippines are in Tier 1, Afghanistan, Cambodia and Singapore are in Tier 2 while China (PRC), Iran and North Korea are in Tier 3. 3 Norton Rose Fulbright, “Modern Slavery and human trafficking – A comparative analysis of existing and emerging legislation in the UK, Australia, Hong Kong and Singapore”, March 2018,
CRIMINAL LAW 42 2019 CONFERENCE Meaning of TIP, forced labour
4. TIP consists of 3 elements, namely, the acts, the means and the purpose. According to Article 3(a) of the Palermo Protocol5, TIP means:
• The recruitment, transportation, transfer, harbouring or receipt of persons;
• By means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person;
• For the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
5. The consent of a TIP victim to the intended exploitation is irrelevant where any of the means mentioned above have been used6. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation is considered “TIP” even if this does not involve any of the means7.
6. The Palermo Protocol does not apply to Hong Kong. In contrast, forced or compulsory labour is prohibited under article 4(3)(a) of the Hong Kong Bill of Rights. Article 4 also prohibits slavery and the slave trade in all their forms as well as servitude.
7. The Court of Appeal (“CA”) in ZN 8 accepted that “forced or compulsory labour, although not defined in the Hong Kong Bill of Rights or the ICCPR, bears the same meaning as used in article 2(1) of the Forced Labour Convention 1930 … In the Convention, forced or compulsory labour is considered to be ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.
8. For forced labour, the International Labour Organization (“ILO”) introduced 11 indicators9 and the presence of a single indicator in a given situation may in some cases imply the existence of forced labour but in other cases several indicators might be needed.
9. The above shows that TIP and forced labour are two distinct concepts, despite the intertwining relationship between them. The potential problems of confusing the two concepts will be illustrated when discussing the legislation in Singapore below.
5 In full, the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime” (2000). 6 Article 3(b) of the Palermo Protocol. 7 Article 3(c) of the Palermo Protocol. 8 Para. 134 of the CA judgment. 9 The 11 indicators are abuse of vulnerability, deception, restriction of movement, isolation, physical and sexual violence, intimidation and threats, retention of identity documents, withholding of wages, debt bondage, abusive working and living conditions and excessive overtime.
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Impact of ZN
10. HKSARG’s duty to protect against human trafficking and forced labour was the subject of detailed discussion in ZN. The case stemmed from an application for judicial review (“JR”) by the Applicant, ZN (with an anonymity order given by the Court), claiming that there was inadequate administrative and legislative protection against human trafficking and forced labour contrary to article 4 of the Hong Kong Bill of Rights (“BOR4”). The Applicant alleged that his ex-employer exploited him by withholding wages, intimidation, and wrongfully accusing him of robbery whilst he was serving as a FDH in Hong Kong. He alleged that his complaint on his plight to the Police, Immigration Department, Labour Department, etc. was not properly investigated as a case of forced labour or human trafficking. The Applicant also claimed damages. Upon substantive hearing held before the Court of First Instance (“CFI”) in January 2016, and by judgment of 23 December 201610, CFI allowed the JR and held that the Applicant was denied protection under BOR4 due to the failure of the HKSARG to fulfill its obligations to tackle forced or compulsory labour or trafficking for that purpose. The Court stressed the need of enacting a criminal offence in this regard11.
11. The Government appealed. On 2 August 2018, the CA handed down judgment allowing the appeal in part. The CA upheld the CFI’s findings on the facts that the applicant was a victim of forced labour in contravention of BOR4(3)12, and that the Government has failed in its investigative duty under BOR4 in relation to the complaints of the Applicant13. Nevertheless, the CA rejected the Applicant’s expansive interpretation and held that BOR4 does not cover human trafficking or human trafficking for the purpose of forced labour14, and BOR4 does not impose a positive duty on the Government to enact a specific criminal offence for forced labour15. As such, CA found that the Applicant has not made out its case that the Government has breached its positive duties under BOR4 to provide practical and effective protection against forced labour by means of a specific criminal offence and overruled the finding of the first instance judge on the same issue.
12. The Applicant made an application for leave to appeal to the Court of Final Appeal on the legal issues which CA ruled in favour of the Government. An oral hearing before CA for the application is fixed for 21 May 2019.
13. While the hearing is pending, the views of the CFI and the CA may shed some light on the need to enact a specific criminal offence to tackle TIP and/or forced labour.
14. In the CFI judgment, Zervos J, as he then was, stressed that the enactment of a criminal offence satisfied two important objectives. First, it outlawed the prohibited conduct by a specific offence provision and penalty, and set out the elements of the conducts that was prohibited. Secondly, it provided an important measure for law enforcement and the general public of the conduct that was prohibited.16
10 [2017] 1 HKLRD 559. 11 Paras. 355, 367 of the CFI judgment. 12 Paras. 133 – 151 of the CA judgment. 13 Paras. 189 – 196 of the CA judgment. 14 Paras. 65 – 132 of the CA judgment. 15 Paras.152 – 188 of the CA judgment. 16 Para. 355 of the CFI judgment.
CRIMINAL LAW 44 2019 CONFERENCE 15. The question before the CA is whether without a specific criminal offence, the government would be in breach of its positive duties under Article 4. The CA was not satisfied that specific criminalization was the only way out. However, it added that17 it might not take too many cases to come before the courts before it would eventually come to the view that a specific criminal offence was required.
16. The CA also stated that the enactment of a specific offence to penalize forced labour would help, to some extent18. Although the CA considered it unnecessary to address the issue of the absence of a specific criminal offence to penalize human trafficking for forced labour19, similar view is anticipated given that the arguments would essentially be the same.
The call for enactment of a specific legislation: Modern Slavery Bill
17. Apart from judicial development, there is a legislative proposal relating to TIP laws. The Legislative Councillor Dennis Kwok proposed a “Modern Slavery Bill” based on the Modern Slavery Act 2015 (“MSA 2015”) of the United Kingdom (“UK”)20. Major proposals of the draft bill include:
(a) Criminalizing TIP, including – • Holding another person in slavery or servitude; • Requiring another person to perform forced or compulsory labour; • Arranging or facilitating another person to enter, depart from or travel within Hong Kong or any country with a view to subject that other person to exploitation (e.g. slavery, servitude, forced or compulsory labour, sexual exploitation, removal of organs, securing services, etc. by force, threats or deception, securing services, etc. from children and vulnerable persons, etc.) (i.e. TIP as defined in the Palermo Protocol).
(b) Criminalizing “forced marriage” and “sex tourism” – • Forced marriage – Forcing anyone to enter into a marriage without freely and fully consenting by the use of coercion, threat or deception; • Sex tourism – Entering or leaving Hong Kong for a motivating purpose of engaging in any illicit sexual conduct21, or arranging, inducing, procuring or facilitating the travel of another person for such purpose for commercial advantage or private financial gain.
(c) Prohibiting suspects or convicts from travelling – • Empowering the Court to make a “slavery and trafficking prevention order / slavery and trafficking risk order” which may prohibit, among other things, a person (a suspect or convict under the draft bill) from travelling to any country(ies) outside Hong Kong.
17 Paras. 177, 188 of the CA judgment. 18 Paras. 168-169 of the CA judgment. 19 Para. 152 of the CA judgment. 20 The bill aims to “bring Hong Kong’s anti-human trafficking framework up to international standard by criminalising all forms of human trafficking, imposing criminality on the proceeds of human trafficking and setting up an independent anti-slavery commission.”, see LC Paper No. CB(2)765/17-18(01), 11 January 2018,
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(d) Controlling the supply chain – • Requiring commercial organizations supplying goods or services of or above a certain size to prepare and publish a “slavery and human trafficking statement”, setting out, among other things, their policies and due diligence processes in relation to slavery and human trafficking.
(e) Establishing an Independent Anti-Slavery Commissioner – • Appointing an Independent Anti-Slavery Commissioner, who must encourage good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences, and the identification of victims of those offences.
18. Apart from the provisions which will have a bearing on prosecution, the proposed Modern Slavery Bill covers different aspects including power to prohibit suspects from travelling, corporate reporting requirement and appointment of an independent Commissioner. For the present purpose, only the proposal of criminalizing TIP will be discussed in further details.
Existing legislative framework
19. In order to evaluate the necessity of a specific TIP offence / legislation, it is essential to examine the existing legislative framework. The stance of the HKSARG is that TIP cases involve crimes of different nature and the existing legislative framework allows flexibility and equips law enforcement agencies (“LEAs”) with more tools and tactics to tackle TIP depending on the details of individual cases, rather than relying on a single piece of TIP legislation22.
20. There are over 50 legal provisions against various TIP conducts, encompassing offences such as physical abuse, false imprisonment, criminal intimidation, unlawful custody of personal valuables, child abduction, child pornography and exploitation of children, illegal employment, etc. The provisions form a comprehensive package of safeguards comparable to composite TIP laws found in other jurisdictions.
21. It would be helpful to demonstrate the effectiveness of the existing legislative framework by scenarios23. In sex trafficking cases, a girl was told that she would come to Hong Kong to work as a waitress and was forced to work as a prostitute upon arrival to Hong Kong. Such act can be investigated and prosecuted under “Fraud” (section 16A of the Theft Ordinance (Cap. 210)), given the extra-territorial effect of the provision pursuant to section 3 of the Criminal Jurisdiction Ordinance (Cap. 461).
22. The offenders can be effectively prosecuted and sufficiently punished by the existing laws. The scenario above is also covered by the offences of “Trafficking in persons to Hong Kong for the purpose of prostitution” (section 129 of the Crimes Ordinance (Cap. 200)), “Control over persons for purpose of unlawful sexual intercourse or prostitution” (section 130 of Cap. 200), “Causing prostitution” (section 131 of Cap. 200), “Living on earnings of prostitution” (section 137 of Cap. 200). The maximum penalties of these offences range from 10 to 14 years’ imprisonment.
22 Security Bureau and Labour and Welfare Bureau, “Legislative Council Panel on Security – Existing Legislation to Combat Trafficking in Persons”, LC Paper No. CB(2)1480/17-18(06), May 2018,
CRIMINAL LAW 46 2019 CONFERENCE 23. If any threat was uttered or the girl was locked up in a place in which sexual service is performed, the perpetrators would have been liable to “Criminal intimidation” (section 24 of Cap. 200), “Detention in a vice establishment” (section 134 of Cap. 200) and/or “False imprisonment” (common law).
24. In another hypothetical situation, a FDH was arranged an employment contract in her home country and it later revealed that the signature on the contract did not belong to her. Apart from “Fraud”, the case can also be investigated and prosecuted under “Forgery” (section 71 of Cap. 200), “Using a false instrument” (section 73 of Cap. 200) and “Possessing a false instrument” (section 75 of Cap. 200), in view of the extra-territorial effect of the above provisions pursuant to section 3 of Cap. 461.
25. If the FDH found that the working conditions were different from the contract, e.g. the identity of the contractual employer and the number of persons served, the case can be investigated for “Conspiracy to defraud” (common law and punishable under section 159C(6) of Cap. 200). If the FDH was required to work in non-contractual address, the perpetrators will be investigated for “Aiding, abetting, counseling or procuring breach of condition of stay” (section 41 of the Immigration Ordinance (Cap. 115) and section 89 of the Criminal Procedure Ordinance (Cap. 221)) and “Making false representation” (section 42 of Cap. 115).
26. A number of labour laws also cater for the scenarios of non-payment, underpayment of wages or delay in payment of wages, failure to grant rest days and statutory holidays against the contractual employer as well as overcharging of commission against the employment agency.
27. Trafficking in human organs is punishable by the Human Organ Transplant Ordinance (Cap. 465) which prohibits commercial dealings in human organs and illegal organ removal or organ transplant.
28. Also, section 8 of the Organised and Serious Crimes Ordinance (Cap. 455) permits the Court of First Instance or the District Court to make a confiscation order in relation to a person’s proceeds of a specified offence exceeding HK$100,000. A number of TIP-related offences are offences “relevant to the definitions of organized crime and specified offences” under Schedule 1 of Cap. 455.
29. Prosecutors are mandated to give due consideration to any TIP elements that may feature in any given case when deciding whether a prosecution should be instigated or continued. In appropriate cases, the question of immunity from prosecution would be considered. In making these prosecutorial decisions, the prosecutor will assess the merit of each claim with a high level of sensitivity, understanding and awareness of the TIP considerations24.
30. Given that the existing legislation had already provided a solid foundation to punish criminal acts relating to TIP, it is arguable whether the suggestion of a specific TIP legislation would merely serve a cosmetic purpose more than adding actual legal powers to LEAs. A similar “multi-legislation” approach is also adopted in tackling other areas of crimes. For instance, triad activities are being targeted by multiple legislative provisions such as the provisions under the Crimes Ordinance (Cap. 200), the Theft Ordinance (Cap. 210), the Societies Ordinance (Cap. 151) and the Offences Against the Person Ordinance (Cap. 212), subject to the nature of each crime.
24 Para. 18.2 of the Prosecution Code and Chapter 51 of the Prosecution Manual 2017.
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31. We will then consider what, if any, lessons Hong Kong may learn from the UK and Singapore counterparts in deciding how TIP-related laws should be developed in Hong Kong.
Development in the UK and Singapore
UK: MSA 2015
32. The UK makes specific provisions in MSA 2015 for the offences of slavery, servitude, forced and compulsory labour and human trafficking. Section 3 of MSA 2015 further defines the meaning of exploitation by stating that a person is exploited only if one or more of the following apply in relation to the person: • Slavery, servitude and forced or compulsory labour; • Sexual exploitation; • Removal of organs; • Securing services etc by force, threats or deception; • Securing services etc from children and vulnerable persons.
33. It is worth noting that the MSA 2015 is not free from criticism. Some of the provisions are slated as “poorly drafted”25, For example, it is unclear whether the “means” element, that is force, threats, or deception, needs to be present in order for the offence of human trafficking to be committed26 given that the same was only stated as one of the forms of exploitation.
34. Further, it must be noted that the legislative framework and context of the English regime is fundamentally different from those of Hong Kong. Unlike the UK which is a party to the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (“EU Convention”), Hong Kong is not a party to any such treaty or convention. The Palermo Protocol does not apply to Hong Kong and there is no international obligation to give effect to the provisions of the Palermo Protocol in Hong Kong.
35. In addition, Hong Kong does not have similar screening mechanisms in place in the UK such as the National Referral Mechanism (“NRM”)27 or bodies described as Competent Authorities for the identification of victims of trafficking and making conclusive decisions on whether a person has been trafficked for the purposes of exploitation, both of which were established to give effect to its international obligation under the EU Convention.
36. Unlike asylum seekers or claimants of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), no statutory screening mechanism exists in Hong Kong for the specific category of “human trafficking victims”.28 It should be carefully considered whether Hong Kong is prepared to adopt the UK model by a mechanism similar to NRM or the Unified Screening Mechanism for CAT claimants.
25 Philippa Southwell, Michelle Brewer and Ben Douglas-Jones QC, Human Trafficking and Modern Slavery Law and Practice (Bloomsbury Professional, 2018), page 87. 26 Jason Haynes, “The Modern Slavery Act (2015): A Legislative Commentary”, Statute Law Review (2016) 37 (1): 33 at 39, 1 February 2016. 27 See paras. 15-16 of R v Joseph [2017] 1 Cr. App. R. 33 for a brief outline of the legal and institutional regime on human trafficking in the UK. 28 Notwithstanding this, it is important to note that there is a TIP victim screening mechanism in Hong Kong. Under the mechanism, Police, Immigration or Customs officers will conduct screening and identification on those vulnerable persons who are arrested or who put themselves forward to the authorities with a view to ascertaining whether they are TIP victims. Security Bureau,
CRIMINAL LAW 48 2019 CONFERENCE 37. Currently, the MSA 2015 is under review and aims to report to the Home Secretary before the end of March 2019. The aim of the review is to understand and report on how the MSA 2015 is operating in practice, how effective it is, and whether the legal framework for tackling modern slavery is fit for purpose now and in the future.29 Undoubtedly, Hong Kong can learn from the UK experience when considering the way forward.
Singapore: Prevention of Human Trafficking Act (“PHTA”)
38. It is suggested that FDHs are vulnerable to TIP and/or labour exploitation given the uniqueness of the situation of FDHs including language barrier and remoteness from the home countries. As in Hong Kong, FDHs comprise a large group of labour force in Singapore.30 Therefore, the model of Singapore provides a good reference point for Hong Kong.
39. To combat human trafficking, Singapore had enacted the PHTA in 2014 (took effect from 1 March 2015). The PHTA basically adopted the definition of TIP in Palermo Protocol in criminalizing TIP. The PHTA defines “exploitation” as sexual exploitation, forced labour, slavery or any practice similar to slavery, servitude or the removal of an organ.
40. The PHTA was intended to add on to the arsenal against TIP, and helped dealing with the many facets of TIP more comprehensively.31 Nonetheless, Singapore is still heavily criticized for the rampant labour exploitation due to the lack of fundamental labour protection including the lack of a guaranteed minimum wage, exclusion from the Employment Act, the non-mandatory employment contract and the insufficient guidelines on working conditions.32
41. Looking at the figures, Singapore authorities had investigated 12 suspected labour trafficking cases involving four suspects under the anti-trafficking law in 2017, however, the government determined that none of the cases violated trafficking laws. The government prosecuted 10 suspected traffickers (one labour trafficking suspect and nine sex trafficking suspects) and convicted four persons, however, the government had yet to obtain a labour trafficking conviction under the trafficking law, nor had it ever prosecuted any cases of domestic servitude under the trafficking law.33
29 UK Parliament,
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42. The above might reflect the problem of unclear distinction between TIP and forced labour/ labour exploitation. “Not all forced labour is the result of human trafficking and not all trafficking- related activities necessarily result in forced labour”34. A victim of forced labour might not necessarily mean that he/she is a TIP victim. For example, a FDH who suffered abusive working and living conditions with her wages withheld and identity document retained means the presence of some indicators of forced labour. Nonetheless, it does not follow that the FDH is a TIP victim. It is arguable whether the case can be classified as forced labour and/or labour exploitation, not to mention TIP.
43. There is a concern that if the anti-trafficking law is used too liberally, it risks downgrading the seriousness of trafficking and over-criminalising the acts which do not fit the criteria35. This also defeats the purpose of a targeted approach against TIP.
44. It is argued that the absence of a clear definition of “forced labour” and “exploitation” in the PHTA hinders victim identification and effective investigation.36 The lack of clarity will mask the true nature of the issue.
Concluding remarks
45. It is unrealistic to think that a specific criminal offence or a dedicated piece of legislation is a panacea for combatting TIP. The anti-trafficking law in UK and Singapore were lambasted for poor drafting. The lack of clarity also undermines its effectiveness and efficiency. The models must be read with circumspection bearing in mind the fundamental differences in our respective regimes. The issue is further complicated by the uncertainty in the meaning of “forced labour” and “exploitation” as well as the confusion arising from the concepts of TIP and forced labour.
46. Since TIP can be tackled under the existing legislative regime, it is not difficult to understand the propensity to maintain the status quo, noting that the legislation, if enacted, might have wider implications on labour and immigration policy and might open to abuse leading to similar situations as non-refoulement claims.
47. On the other hand, one must not lose sight of the fact that most, if not all common law jurisdictions37 enact a specific criminal offence to tackle TIP. ZN had already sounded the alarm on the need to consider specific criminalization. It remains to be seen whether enacting a specific anti-trafficking offence is a more desirable course of action. However, it is crucial to be open-minded and give serious thoughts to this issue in light of the mounting pressure and international developments.
34 ILO, “Managing labour mobility: Opportunities and challenges for employers in the ASEAN Region”, page 47,
CRIMINAL LAW 50 2019 CONFERENCE CRIMINAL LAW 2019 CONFERENCE 51 CRIMINAL LAW 52 2019 CONFERENCE CRIMINAL LAW 2019 CONFERENCE 53 CRIMINAL LAW 54 2019 CONFERENCE CRIMINAL LAW 2019 CONFERENCE 55 ACKNOWLEDGEMENTS
Organising Committee of Criminal Law Conference 2019
Chairman Mr David Leung SC Director of Public Prosecutions
Members Prosecutions Division, Department of Justice Ms Selene Tsoi Deputy Director (Special Duties) Mr Paul Ho Deputy Director of Public Prosecutions Mr Michael Wong Senior Assistant Director of Public Prosecutions Ms Polly Wong Chief Executive Officer Ms Ada Hung Executive Officer
The Hong Kong Bar Association Mr Eric Kwok SC Member of the Special Committee on Criminal Law & Procedure
The Law Society of Hong Kong Mr Kenneth Ng Chairman of the Criminal Law & Procedure Committee Mr Eric Tang Member of the Criminal Law & Procedure Committee
The conference materials were contributed by the following Public Prosecutors of the Department of Justice.
Mr David Leung SC Director of Public Prosecutions Mr William Tam SC Deputy Director of Public Prosecutions Ms Maggie Yang Deputy Director of Public Prosecutions Ms Vinci Lam Deputy Director of Public Prosecutions Mr Paul Ho Deputy Director of Public Prosecutions Ms Kasmine Hui Senior Public Prosecutor Mr Ivan Leung Senior Public Prosecutor Ms Cherry Ho Senior Public Prosecutor (Ag.) Ms Human Lam Senior Public Prosecutor (Ag.)
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